SA Govt has another go at bikie laws

Updated
June 18, 2012 19:04:00

It's four years since the first Australian laws came in to tackle motorbike gang crime. Then they were ruled unconstitutional and struck down in South Australia and New South Wales. Today the South Australian Government made its second attempt at cracking down. The Government says it's confident these laws will hold up to any legal challenge - and another High Court challenge is seen as all but certain

MARK COLVIN: It's four years since the first laws came in in Australia to tackle motorbike gang crime. Then they were ruled unconstitutional and struck down in South Australia and New South Wales. Today the South Australian Government made its second attempt at cracking down.

Tom Nightingale reports.

TOM NIGHTINGALE: From today police and judges in South Australia have new powers. Police can apply for a gang to be deemed a declared organisation. If the declaration is made, any gang members can be the subject of control orders restricting movement, having weapons, and associating with other gang members.

If you're not a member, it's still an offence to knowingly associate with a gang member more than six times. It's the second time South Australia has brought in such laws. The state's Attorney-General, John Rau.

JOHN RAU: So what we've done now is to change it so that the declaration will be made by an eligible judge, no longer the attorney-general. The control orders will be made by a judge, not in the magistrate's court, but a Supreme Court judge. And the court is not bound to make a control order once a declaration is made.

So in those three areas the discretion of the courts is absolutely guaranteed, which is a big departure from the previous model.

TOM NIGHTINGALE: John Rau says he believes another legal challenge is inevitable.

JOHN RAU: Let's face it, the people we are talking about here are well resourced and it is not in their interests just to let this legislation stand and do its work. So having regard to the advice that I've had, I'm pretty confident that we will withstand those challenges this time. Although, one can't obviously predict in advance what their arguments might be.

TOM NIGHTINGALE: The United Motorcycle Council of South Australia represents gang members. Its spokesman is Descendants club member, Tom Mackie.

TOM MACKIE: I guess it's one of those things where we sort of wait and see how they're enacted or acted upon, when they're acted upon, and then that'll give us, you know, give us the reason to engage legal counsel and get them to have a look at it.

TOM NIGHTINGALE: Gabrielle Appleby is a law lecturer with the University of Adelaide. Gabrielle Appleby says the latest South Australian laws are modelled on the New South Wales example, with a change that a judge provide reasons of decisions to increase the chances of it being constitutional.

GABRIELLE APPLEBY: The South Australian Government has been very smart and they have waited and they have seen what the High Court said about the New South Wales legislation and they have really followed, almost to the letter, the judgements of the High Court in ensuring that this new version of the SOCCA (Serious and Organised Crime (Control) Act) is going to be found constitutional if it is challenged. And I believe it probably will be.

I guess, what I'm more generally disappointed in is there is still provision for the commissioner of police to designate some material as classified, and that material will not be released to the respondent, but the court may take that into account both in making a declaration or making a control order.

Well that's a constitutional provision and it's been challenged by - in the court before and it's been found to be constitutional, but it makes huge inroads into procedural fairness and what we understand as justice in our society.